Wednesday, August 4, 2010

Judicial Minimalism Or Activism? How 'Bout a Little of Both?

I always dread the process of selecting and confirming new justices for the Supreme Court.  It's such an emotional and ideological battle.  The Left wants liberal, activist judges, and the Right wants so-called originalists.  And anytime a justice rules against someone's core political beliefs, that individual almost always refers to it as "judicial activism" in a weird attempt to sound "smart" rather than admitting that they only want their values to be "constitutional."  It kind of makes me sick to my stomach.

Liberals tend to believe in a more living, evolving Constitution.  They argue that because times change, and values obviously change with them, constitutional interpretation should fit these changes.  On the other hand, conservatives tend to believe that the Constitution is a dead document, that the only legit way to add new language or federal powers is through a constitutional amendment.  They argue that loose constructionism means that the courts could give the other two branches of government practically unlimited power.  Few people want the government to have the power to do anything it wants.

However, in my view, both interpretations have shortcomings.  An evolving Constitution can allow justices to give the other two branches some new powers that were not originally explicitly defined in the Constitution, but so many cases today before the Court have to do with things that were not even issues 200 years ago.  How can we know for sure what the Founders' original intent was?  Is something "unconstitutional" simply because it is not mentioned in the Constitution?  The world of the Founders was much different than today's. On the other hand, originalists do have some reason to be suspicious, as an evolving view of the Constitution could give the federal government several new powers that could infringe on our rights as Americans.

I also have some misgivings about recent court cases, such as Lawrence v. Texas, that involve state infringements on the civil liberties of individuals, possibly being interpreted in an "originalist" manner.  I thank God they weren't, thanks to the 14th Amendment, but would it make sense to claim that "sodomy is unconstitutional"?  Is not the Constitution designed to restrict the power of government?  How can one turn it on its head to restrict the powers and liberties of individuals and give more power to the government?  That is tyranny, if you ask me.  Do not conservatives constantly claim they believe that we are born with our inalienable rights?  That government does not grant rights?

So what is the solution? Well, I would call it "moderate construction."  Basically, when the case involves something that is explicitly defined or mentioned in the Constitution, originalism is probably the way to go.  But when it involves an issue that was not even mentioned 200 years ago and has no reference at all in the Constitution, courts should tread carefully but they do have some right to be a little flexible with interpretations.  That seems to me to be a fairly reasonable compromise.

After all, the Constitution did not even grant the Supreme Court or lower federal courts the ability or oblige them to use judicial review.  The federal court system was specified years after the Constitution was ratified, and the few constitutional clauses dealing with the federal court system are quite vague.  The first judicial review case that set the precedent did not even happen until decades after the Constitution became the law of the land.

The Left and the Right both need to quit it with this absolutist nonsense regarding constitutional law.  I've never cared much for absolutism, as it seems that, more times than none, the truth is somewhere in the middle.  Both sides of the aisle do a great disservice to the political discussion and America in general when they oversimplify constitutional interpretation or say that only one type is correct all the time.  Judicial interpretation should be done on a case-by-case basis.  Judging is quite difficult, and we make a mockery of the process when we tell justices (or prospective ones) that they must adhere to one style or the other in every single case.

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